10 tips on amending your CC&Rs

Homeowner associations in the U.S. are governed by CC&Rs (covenants, conditions, and restrictions), which are contracts between the HOA and homeowners. The document outlines policies, rules and procedures covering issues regarding the usage and alteration of property. Here’s how to make changes to CC&Rs.

Talk to your neighbors first. Amending CC&Rs takes a supermajority (i.e. more than just a majority of your quorum), so strong membership support is essential.

Avoid controversial amendments such as those changing assessments so that some members pay more or less assessments or those requiring unpopular use restrictions.

Some amendments do not require membership approval. Under the Civil Code, amendments deleting developer marketing provisions (Section 4230) or deleting illegal discriminatory restrictions (Section 4235), or simply changing the old Civil Code references to the current (Section 4235) can be adopted by the board of directors in an open meeting.

Get out the vote. Explain to your neighbors that the failure to vote (abstaining) is the same as a “no” vote. Consider dividing up the community into sectors and divide those sectors among volunteers. Amendments are not often very interesting and apathy is usually the greatest enemy to updating CC&Rs.

If you cannot meet the supermajority required by your CC&Rs, Civil Code 4275 allows the HOA to file a petition and seek court approval — however, there must be more than 50 percent of all of the members (not just the quorum) voting in favor. These petitions really should be viewed as a last resort, due to the legal and copying expense involved.

The exact text of the amendment must be sent out with the ballots — even if it was already previously sent out. This new requirement from Civil Code 5115(e) took effect this year. When sending it out to members, help them by sending two versions — a “redlined” one showing what is being removed and added, and another version showing the exact text. If your association is pursuing a complete rewrite of your CC&Rs, a “redlined” version will be too complicated. Instead, consider sending along a summary or highlights of what will be new or different.

While trying to amend CC&Rs, consider if bylaw amendments are also needed. Get more accomplished with the same vote (and effort). Bylaw amendments usually require less votes to approve, and a court can also order them approved under Corporations Code 7515.

If homeowners want to express their disagreement, let them. Surely the board has already expressed why the amendment should be passed, in HOA meetings or newsletters. If some members strongly oppose the amendment, the Wittenberg v. Beachwalk case reminds us that the board cannot prevent others from expressing their disagreement. In that case, the board should slow down and work more to build a consensus.

Have an attorney prepare the amendment. CC&Rs are a legal document. Sometimes, amendments can unknowingly violate the law or contradict a part of the CC&Rs. Have your attorney involved very early in the amendment process to avoid wasted effort.

Make sure your amendment is recorded. Once it is filed with your county recorder, all owners and future owners are deemed by law to have notification of the amendment and are therefore bound by it.

Kelly G. Richardson is managing partner of Richardson Harman Ober, a law firm known for community association advice. Send questions to KRichardson@ RHOpc.com HOAHomefront.com